Olariu v. Gibbons

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

VALERIU JOHN OLARIU, Plaintiff/Appellant,

v.

MICHAEL JAMES GIBBONS; AVIS RENT-A-CAR SYSTEM, LLC; and
AVIS BUDGET CAR RENTAL, LLC; ENTERPRISE RENT-A-CAR CO.
and ENTERPRISE LEASING COMPANY OF PHOENIX, LLC,
Defendants/Appellees.

No. 1 CA-CV 14-0559
FILED 6-30-2015

Appeal from the Superior Court in Maricopa County
No. CV2013-052868
The Honorable Thomas L. LeClaire, Judge

AFFIRMED

COUNSEL

Ivan & Kilmark, PLC, Glendale
By Florin V. Ivan
Counsel for Plaintiff/Appellant

Thomas, Thomas & Markson, P.C., Phoenix
By Barry M. Markson, Michael G. Kelley
Counsel for Defendant/Appellees Gibbons and Avis

Gust Rosenfeld, P.L.C., Phoenix
By Craig A. McCarthy, Justin M. Scorza
Counsel for Defendant/Appellee Enterprise
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MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.

G E M M I L L, Judge:

¶1 Valeriu Olariu appeals the trial court’s grant of summary
judgment in favor of Enterprise Leasing Company of Phoenix, LLC and
Enterprise Rent-A-Car Company (“Enterprise”), Avis Budget Car Rentals,
LLC and Avis Rent a Car System, LLC (“Avis”), and Michael James Gibbons
(collectively “Appellees”). For the following reasons, we affirm.

BACKGROUND

¶2 In November 2010, Olariu was involved in a three-car
automobile accident. His car was struck by Gibbon’s car, which Gibbons
had rented from Avis. Gibbon’s car was struck by a car driven by Susan
Kinder, which Kinder had rented from Enterprise. As a result of the
accident, Kinder was cited for DUI and charges were filed against her in
municipal court.

¶3 More than 30 months after the accident, Olariu filed a
personal injury suit in Maricopa County Superior Court against both
drivers and their respective rental car companies. The complaint alleged
that Olariu sustained continuing harm as a result of the accident. Avis and
Gibbons subsequently filed a motion for summary judgment, arguing both
that the statute of limitations barred Olariu’s claim as to all parties and that
Avis could not be held vicariously liable for the negligence of a renter. Avis
and Gibbons also filed a motion for a protective order preventing Olariu
from conducting depositions of the parties. Enterprise later moved for
summary judgment, also premised upon statute of limitations and
vicarious negligence arguments.

¶4 After oral argument, the trial court granted judgment in favor
of Appellees. The court found that the action was time-barred against
Enterprise, Avis and Gibbons because Olariu’s complaint was filed more
than two years after the accident. The court also determined Olariu failed
to adequately allege a viable legal claim of liability as to Avis and
Enterprise. Olariu timely appealed the trial court’s ruling. This court has

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jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1) and -2101(A).

DISCUSSION

¶5 We review de novo a court’s grant of summary judgment and
will view the evidence and all reasonable inferences therefrom in the light
most favorable to the party against whom judgment was entered. Felipe v.
Theme Tech Corp., 235 Ariz. 520, 528, ¶ 31 (App. 2014).

I. Statute of Limitations

¶6 Olariu argues that the court incorrectly found his action was
time-barred under A.R.S. § 12-542. Under the statute, a claim for personal
injury must be filed within two years from the time the claim accrues:

Except as provided in § 12-551 there shall be commenced and
prosecuted within two years after the cause of action accrues, and
not afterward, the following actions:

1. For injuries done to the person of another . . . .

A.R.S. § 12-542(1) (emphasis added). On appeal, Olariu identifies four
reasons that the court erred in holding that the two-year deadline for filing
a personal injury claim precludes his complaint. We address each in turn.

A. Accrual Date

¶7 Olariu first argues that his cause of action against Avis and
Gibbons did not accrue until after the municipal court proceedings against
Kinder were over. At the scene of the accident, Gibbons denied fault for
colliding with Olariu, stating that he was “nearly stopped” when he was hit
by Kinder’s vehicle, causing him to strike Olariu. As a part of the municipal
proceedings against Kinder, Gibbons allegedly contradicted his statements.
Olariu claims that because of Gibbon’s denial of liability on the day of the
accident, he was falsely misled into believing that he had no cause of action
against Gibbons until the criminal proceedings against Kinder revealed
otherwise. As a result, Olariu argues that a genuine dispute exists
concerning the accrual date.

¶8 For the purposes of a statute of limitations, a cause of action
accrues when a party “kn[ows], or through due diligence should have
known” of a possible cause of action against another. Rhoads v. Harvey

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Publ’n, Inc., 145 Ariz. 142, 147 (App. 1984). It is not necessary for a party to
“know all the facts for the statute of limitations to begin to run. All that is
required is that they should have known such facts that would have
prompted a reasonable person to investigate and discover the fraud.”
Richards v. Powercraft Homes, Inc., 139 Ariz. 264, 266 (App. 1983). We
conclude that sufficient information was present on the day of the accident
to put Olariu on notice that he may have a claim against Gibbons. Gibbons’
denial of fault at the scene did not toll the statute, because the accident alone
was sufficient to give Olariu reason to investigate whether Gibbons was at
fault. The trial court did not err in finding that the cause of action accrued
on the date of the accident in November 2010.

B. Tolling Under A.R.S. § 12-501

¶9 Next, Olariu claims that because Gibbons was not a resident
of Arizona, A.R.S. § 12-501 applies to toll the statute of limitations as to his
claims against Gibbons. Section 12-501 extends the statutory deadline for
filing a cause of action when the defendant is located outside of Arizona:

When a person against whom there is a cause of action is
without the state at the time the cause of action accrues or at
any time during which the action might have been
maintained, such action may be brought against the person
after his return to the state. The time of such person’s absence
shall not be counted or taken as a part of the time limited by
the provisions of this chapter.

¶10 This court has expressly held that the statute does not apply
to a defendant who is subject to Arizona’s long-arm jurisdiction. Goodwin
v. Hewlett, 147 Ariz. 356, 358 (App. 1985) (“[A.R.S. § 12-501] does not apply
to a non-resident defendant who is amenable to process under the long-arm
statute.” (citing Selby v. Karman, 110 Ariz. 522, 524 (1974))). Because
Gibbons was subject to Arizona’s long-arm jurisdiction statute, Ariz. R. Civ.
P. 4.2(a), he was at all times amenable to service, and A.R.S. § 12-501 is
inapplicable. Furthermore, out-of-state defendants are amenable to service
of process by certified mail. See Ariz. R. Civ. P. 4.2(c). Non-Arizona
residents involved in an automobile accident in Arizona can also be served
under Arizona’s Nonresident Motorist Act. See Ariz. R. Civ. P. 4.2(e). As a
result, A.R.S. § 12-501 does not apply here to extend the statute of
limitations as to Gibbons.

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C. Waiver

¶11 Olariu also argues that Enterprise waived the statute of
limitations defense because it did not include the defense in its motion to
dismiss. Instead, Enterprise asserted the defense for the first time in its
motion for summary judgment.

¶12 The statute of limitations is a defense that must be
affirmatively pled. But the defense is waived only if not asserted prior to
judgment. See O’Keefe v. Grenke, 170 Ariz. 460, 466 (App. 1992) (citing
Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 358 (App. 1985)); Romo v. Reyes,
26 Ariz. App. 374, 376 (App. 1976). Enterprise’s motion clearly asserted the
statute of limitations as a defense. Accordingly, it was not waived.

D. Applicability of § 12-542

¶13 Next, Olariu argues that his complaint was broadly worded
to include “other theories of liability” not contemplated by A.R.S. § 12-542.
As such, he asserts that the trial court erred in dismissing the action in its
entirety because the statute of limitations would not apply to those claims.

¶14 Even assuming these claims are not controlled by the two-
year statute of limitations, the court correctly found that they were not
sufficiently alleged in the complaint. In the complaint, Olariu made several
conclusory allegations against Enterprise and Avis, premised upon the
theory of vicarious liability. He did not, however, support these allegations
with additional affidavits or factual assertions. As a result, we agree with
the trial court that, without more, Olariu’s complaint was insufficient to
allege a viable legal claim for vicarious liability against Enterprise or Avis.1
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008) (explaining that
“mere conclusory statements are insufficient to state a claim upon which
relief can be granted” under notice pleading requirements); see also Ariz. R.
Civ. P. 8(a).

¶15 We conclude, therefore, that the trial court correctly applied
A.R.S. § 12-542 to hold that Olariu’s action was time-barred against

1 We further note that Olariu did not attempt to amend his complaint to
allege any other claims.

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Appellees. To the extent that any claims therein are not included under
A.R.S. § 12-542, the court correctly held that the complaint failed to allege a
viable legal theory. There was no error.2

II. Due Process Claims and Denial of Discovery Requests

¶16 Next, Olariu argues that the trial court’s grant of summary
judgment violated his right to due process. In support of his argument, he
asserts that the court abused its discretion by denying him the opportunity
to conduct further discovery and that it applied an erroneous legal standard
when ruling on the motion for summary judgment before discovery was
complete. Disposition of a case on summary judgment grounds satisfies a
party’s due process rights so long as it is reached in accordance with the
rules of civil procedure. Hill v. McDermott, Inc., 827 F.2d 1040, 1044 (5th Cir.
1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

A. Motion for Protective Order

¶17 After moving for summary judgment, Appellees Avis and
Gibbons also moved for an emergency protective order, preventing Olariu
from conducting depositions under Arizona Rule of Civil Procedure
30(b)(6). Olariu argues that the court improperly granted this motion, and
in doing so, violated his due process rights. We review a court’s decision
on evidentiary matters, including denial of discovery requests, for an abuse
of discretion. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013).

¶18 Although Avis and Gibbons wanted to cut off further
discovery, Olariu did not file a Rule 56(f) motion and affidavit detailing
what additional discovery was needed to respond to the motion for
summary judgment. See Ariz. R. Civ. P. 56(f). As a result, the court’s
decision to proceed with a substantive ruling was not an abuse of
discretion. Furthermore, in granting judgment in favor of Appellees, the
trial court explained that the conclusory allegations in Olariu’s complaint
were insufficient to establish a theory of liability. As a result, the trial court
disposed of these claims because Olariu failed to identify a viable legal
claim against Enterprise or Avis. As it pertained to the statute of
limitations, neither party disputed the date on which the accident occurred.

2 For the same reasons Olariu’s action is untimely against Appellees, it is
also untimely against Kinder, ABC Entity 2, and ABC Entity 3. We therefore
decline to address his argument that the court erroneously dismissed the
other defendants.

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The court found that the action was time-barred because it was filed more
than two years after that date. On both issues, therefore, additional fact-
finding would not have “pertain[ed] to the ‘theory of liability used by the
[trial] court’” in its ruling on the summary judgment motions. See Home
Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1157 (9th Cir. 1991) (quoting Fed.
Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989)).
Accordingly, denial of the opportunity for further discovery was not error.
See Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 282 (App. 1991)
(holding that denial of additional fact finding was not abuse of discretion
when the purported additional facts would not support the proposed
theory of liability).

B. Legal Standard for Summary Judgment

¶19 Next, Olariu argues that the trial court applied an incorrect
legal standard when assessing the motion for summary judgment, thereby
denying him due process. Olariu asserts that because discovery had not
been completed, the court should have applied a more deferential standard.
We disagree.

¶20 The standard for summary judgment is well-settled: “[t]he
court shall grant summary judgment if the moving party shows that there
is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a); see also Orme
School v. Reeves, 166 Ariz. 301, 305 (1990) (“Clearly, summary judgment
should be granted when the evidence presents no genuine issue of material
fact.”) When it ruled on the motions for summary judgment, the trial court
found that no genuine issue of material fact existed. Accordingly, the court
applied the correct standard.

¶21 Olariu cites Peterson v. Valley Nat. Bank of Phoenix, 90 Ariz. 361
(1962), as applying a standard more favorable to a plaintiff. Olariu argues
that Peterson asserts summary judgment is inappropriate when there is even
the “slightest doubt as to the facts.” Id. at 362. But in Orme School v. Reeves,
our supreme court rejected the “slightest doubt” standard. 166 Ariz. at 309.
The supreme court explained that even affidavits creating room for some
doubt may be insufficient to withstand a motion for summary judgment.
Id. The relevant question is not whether a slightest doubt exists, but rather
whether “the facts produced in support of the claim or defense have so little
probative value . . . that reasonable people could not agree with the
conclusion” they purport to advance. Id. In other words, the 1962 standard

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advocated by Olariu was cast aside by our supreme court in 1990 and is,
therefore, inapplicable.3

¶22 Olariu had notice of the motion for summary judgment, was
able to respond to the motions, and argued his positions before the court
ruled. Moreover, the court followed the current law in resolving the
motions. We discern no error. Accordingly, the trial court’s entry of
summary judgment in favor of Appellees did not violate Olariu’s due
process rights.

III. Costs and Request for Attorney Fees

¶23 Finally, Olariu argues that the trial court erred when it
awarded Appellees their taxable costs. We review an award of costs for an
abuse of discretion. See Graville v. Dodge, 195 Ariz. 119, 130, ¶ 53 (App. 1999)
(reviewing cost award for abuse of discretion).

¶24 The trial court awarded Appellees a total of $676 in costs: $285
to Enterprise, and $391 to Avis and Gibbons. The awards included a total
of $140 in recovery for Arizona TurboCourt filing fees. They also included,
as to Avis and Gibbons, a penalty doubling all taxable costs incurred after
the offer of judgment was served and rejected, pursuant to Arizona Rule of
Civil Procedure 68.

¶25 Olariu argues that the cost of AZ TurboCourt fees are not
recoverable, because they are not contemplated by A.R.S. § 12-332(A). The
statute allows for recovery of costs “incurred pursuant to an order.” A.R.S.
§ 12-332(A)(6). Because electronic filing is mandatory under an Arizona
Supreme Court Administrative Order, we interpret § 12-332(A) as
including the costs of TurboCourt filings.

¶26 Olariu also claims the court erred in imposing a Rule 68
penalty because Appellants did not attach the proposed offer of judgment
to their verified statement of costs. There is no requirement that a Rule 68
offer of judgment be included with a statement of costs. Furthermore, Avis

3 Olariu further argues that a lower standard should have been applied
because discovery was incomplete. But additional discovery was not
necessary to support the trial court’s ruling on the motion for summary
judgment, because additional fact finding would have been irrelevant to the
theory of liability proposed by the court. See supra ¶ 18.

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and Gibbons included a copy of the offer in their reply in support of the
proposed form of judgment. Contrary to Olariu’s argument, the offer of
judgment conforms with Rule 68 and forms a sufficient basis for Rule 68
sanctions. Accordingly, we affirm the trial court’s award of costs.

IV. Attorney Fees and Costs on Appeal

¶27 Appellee Enterprise requests a sanction of attorney fees and
costs under Arizona Rule of Civil Appellate Procedure (“ARCAP”) 25. In
our discretion, we decline to impose a sanction under Rule 25. All
Appellees are, however, entitled to recover their taxable costs on appeal
under A.R.S. § 12-341, upon compliance with ARCAP 21.

CONCLUSION

¶28 We affirm the trial court’s grant of summary judgment in
favor of Appellees.

:ama

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